Just How Extreme is Bill C-18?: It Mandates Payments For Merely Facilitating Access to News – Michael Geist – Michael Geist –

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Bill C-18, the Online News Act, is less than 48 hours old, but the more you examine the bill, the worse it gets. My previous posts unpacked why the general policy is bad for press independence and competition as well as why the bill features a misguided attempt to require payments for links. Yet the bill requires an even deeper look since it goes far beyond “compensating journalists when they use their content” (as Prime Minister Justin Trudeau said yesterday in the House of Commons) or even linking to news articles. Rather, the bill requires compensation for facilitating access to news in any way and in any amount.
In doing so, it eviscerates the claim that there is a tangible connection between the requirement to pay for the value of news articles on social media and search platforms (called digital news intermediaries or DNI’s in the bill). Rather, Bill C-18 is a shakedown with requirements to pay for nothing more than listing Canadian media organizations with hyperlinks in a search index, social media post, or possibly even a tweet. At a time when we need the public to access to credible news, Canadian Heritage Minister Pablo Rodriguez believes that large Internet companies that engage in the act of facilitating access to news –  not copying, not using, not even directly linking –  should pay for doing so.
The relevant provision in the bill is Section 2(2), which states:
For the purposes of this Act, news content is made available if
(a) the news content, or any portion of it, is reproduced;
or
(b) access to the news content, or any portion of it, is facilitated by any means, including an index, aggregation or ranking of news content.
The bill proceeds to require payments – either by way of agreements that must be approved by the CRTC or final offer arbitration – for DNIs who make available news content. Section 2(2)(a) covers what most Canadians would likely consider constitutes the “use” mentioned by the Prime Minister yesterday, namely the reproduction of news content by a DNI such as Facebook or Google. As it happens, those companies largely agree and have licensed news content where they reproduce the content in full.
More notable is Section 2(2)(b), which covers facilitating access to news content. This is certainly designed to cover linking but the broad language almost surely extends beyond linking to a specific article. Indeed, a link to the general home page of the Toronto Star, National Post, Globe and Mail or many other Canadian media sites can be said to facilitate access to news content, particularly since the provision adds that it can be just a “portion of it” and the facilitation can occur “by any means.”
Canadian Heritage Minister Pablo Rodriguez has made a point of contrasting his bill with the Australian code on the same issue. The Australian code treats three activities as making content available: reproduction of the content, providing an extract of the content (designed to target short blurbs of the stories), or links to the content. While that too is worthy of criticism (the Australian code has actually never been used), it does not cover mere facilitation of access.
Why does this matter?
There was a time when this government fashioned itself as pro-Internet, supportive of net neutrality, and a staunch defender of fundamental freedoms, including freedom of the press and other media of communication. Yet it cannot credibly claim to support those principles and simultaneously legislate barriers to accessing media by mandating payments for facilitating access to media sources.
Further, how is any of this possibly constitutional? Would the Supreme Court uphold a law whose effect could be to limit facilitation of access to news? Moreover, how does the entire Bill C-18 framework fit within the federal government’s jurisdiction? It isn’t broadcast, it isn’t telecommunications, and it isn’t copyright. If the government claims powers over anything involving the Internet then it believes there are no real limits on its jurisdiction.
Millions of Canadians choose to access media through search and social media. As I pointed out in yesterday’s post, the resulting referral links already provide enormous value at no cost. Setting even that aside, mandating payments for services that facilitate access to media sources runs counter to basic freedoms and casts aside the suggestion that the bill is limited to a “quid pro quo” of payment for links to news articles. Bill C-18 is shamefully over-broad, an embarrassment to the news media lobby that demanded it, and unworthy of a government that sees itself as a model for the rest of the world on media freedoms.
This bill is a disaster and should be rewritten.
It definitely needs reworking.
The Bill doesn’t need to be rewritten; it needs to be scraped.
Canadian news organization remind me of Eatons and Simpsons – they dominated the retail sector for decades, but were unwilling or unable to make the necessary changes required because of increased competition from malls and specialty chains. Ultimately, Eatons and Simpsons ceased operations.
Canadian news organizations have made some changes, but are still trying to be department stores of information. Not all news organizations need to cover sports, business, entertainment, weather or local news. They need to decide what areas to focus on and get out of all the others. Otherwise, they will end up like Eatons and Simpsons.
The heart of the issue is the survival of reliable, local news in Canada. Google and Facebook dominate targeted online advertising in Canada. This is revenue that previously went to supporting journalism and news gathering in Canada. Quality journalism is time consuming and expensive, but without that effort and experience you get opinion and poorly researched information – fake news, which is divisive and dangerous.
Years ago the federal government had the opportunity to remove a loophole that currently allows Canadians businesses the same tax benefits whether they advertise with a big American tech company that syphons tax dollars out of Canada or local news organizations that have a much more vested interest in our democracies and supporting local communities. The government never closed the loophole because it would have been portrayed as regulation or control of the internet by American tech lobbyist, and thus politically negative, especially in the short term, which seems to be how politicians make most decisions.
The result has been the loss of many local newspapers and television stations, which had played a key role in building community, supporting local businesses, and in the creation of quality journalism, which is important for covering complex issues and for the creation of quality information that we can trust. The result has been enourmous profits for companies like Facebook and Google, along with all sorts of data gathering impacting personal privacy and worse.
Anyone who talks about scraping Bill C-18 is either ignorant to the ways that American big tech steals Canadian advertising revenue or is part of their lobbyist machine.
I wonder what would happen if all the search engines and aggregators will blacklist all Canadian content, or just block access from Canada?
That would be an, unfortunately, unlikely thing to happen. In Australia, the search engines and platforms were gearing up to do exactly that. The idea was to have a repeat of what happened in Spain where the outlets traffic completely dried up and had the outlets begging for the platforms and search engines to come back.
Unfortunately, that didn’t happen in Australia. Instead, Facebook and Google decided that these link tax laws were a good idea because it basically wiped out all future competition by requiring that search engines and platforms shell out hundreds of millions just to start up, so they went along with the insane link tax idea as an anti-competitive tactic.
Google has already inked deals with a large number of the large publishers, so the chances of a blacklist won’t happen here. Search engines and platforms blacklisting Canada in response would be the reaction everyone should have hoped for because it would have slammed the door on the link tax idea right from the start. The publishers ad revenue would have dried up and, faced with bankruptcy, would have seen the publishers change their minds on this whole idea in short order. The way things played out, though, it is improbable that this is going to happen now.
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This isn’t a democracy of any sort. Trudeau is a dictator who wants to control every aspect of our lives. This entire thing has to be scrapped and people in Canada aren’t in the slightest aware of what he’s doing.
I agree and the ones who are are little in population would say 1-2% know whats going on and are following it —but the issue is as well that the bulk of the parliamentarians if not all are all in on this BS —so what ever fighting going on or open protest its so far amounted to so little
contrary to what some of the activist have been saying
T
It took me a bit to think why the government put such a provision in the bill in the first place. I finally remembered that, back in 2019, Google launched an experiment in Europe that changed Google News to remove all context. News stories had thumb nails removed, headlines, snippets, and all other context removed. The result? Traffic to news sources plummeted by 45%. The lesson, at the time, was very clear: aggregators provide a net benefit to publishers. The lobbyists, however, ordered the government to insert a provision that explicitly bans even that practice: https://www.freezenet.ca/not-just-linking-link-tax-to-target-mere-facilitating-access-to-news/
Basically, the Canadian government learned the wrong lesson in all of this. Not surprising given that lobbyists run the show in the first place, so we get ridiculous responses like this in the first place.
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The heart of the issue is the survival of reliable, local news in Canada. Google and Facebook dominate targeted online advertising in Canada. This is revenue that previously went to supporting journalism and news gathering in Canada. Quality journalism is time consuming and expensive, but without that effort and experience you get opinion and poorly researched information – fake news, which is divisive and dangerous.
Years ago the federal government had the opportunity to remove a loophole that currently allows Canadians businesses the same tax benefits whether they advertise with a big American tech company that syphons tax dollars out of Canada or local news organizations that have a much more vested interest in our democracies and supporting local communities. The government never closed the loophole because it would have been portrayed as regulation or control of the internet by American tech lobbyist, and thus politically negative, especially in the short term, which seems to be how politicians make most decisions.
The result has been the loss of many local newspapers and television stations, which had played a key role in building community, supporting local businesses, and in the creation of quality journalism, which is important for covering complex issues and for the creation of quality information that we can trust. The result has been enourmous profits for companies like Facebook and Google, along with all sorts of data gathering impacting personal privacy and worse.
Google’s arguments against Bill C-18 are connected to their goals of profit maximization regardless of the impact or long term results. They are spending millions paying lobbyists to prevent changes to a system that only benefits them in the long run. Google is a media company that does not create any media. Eventually a system that does not support quality journalism leads to a chaos of misinformation where everyone has a opinion but no one trusts anything.
Google makes the argument that creating a funding mechanism will result in those creating misinformation will be supported, but that is easily fixed through funding criteria, such as the establishment of advisory committees and pluralistic voices involved in ensuring information is accurate and representative.
Google also provides a rather weak example that they are simply linking customers to products and services similar to a taxi driver bringing customers to restaurants. The truth is the situation is more like taxi services that sell dinner and drinks along the way at discounted prices who then drop off customers at restaurants who may not even want dessert at that point. Eventually the restaurants go out of business, and we are left eating crappy meals in moving vehicles.
There is another, larger issue at stake and that is Canadian autonomy-sovereignty. I think we would all be wise to question and understand what we like about life in Canada compared to life in the US. The more we accept control and dominance by US big tech corporations the closer we come to just being another US state with someone like Donald Trump making important decisions that impact all of us.
Law, Privacy and Surveillance in Canada in the Post-Snowden Era (University of Ottawa Press, 2015)
The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (University of Ottawa Press, 2013)
From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (Irwin Law, 2010)
In the Public Interest: The Future of Canadian Copyright Law (Irwin Law, 2005)
Michael Geist
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